entitled to legacies, and the executor or residuary legatee. But Hales v. Freeman (a), so far as it can be an authority on a point not expressly raised, shews that the rule would be different as between a legatee and a devisee of the land having paid the duty. It must be maintained, on the other side, that the legacy duty is a charge on the land itself. The act 45 G. 3. c. 28. s. 5. requires, in the case of legacies charged on land, that the duty shall, in the first instance, be paid by the trustee or devisee, and then retained by him, as is there directed. In the case of an annuity the duty is not taken as a deduction of so much from the annual sum payable, but is a gross sum, charged upon the calculated value of the annuity, to be paid by four instalments. Now, supposing the annuity to equal the full annual value of the land, if the devisee cannot retain or recover against the legatee, how is the duty to be repaid him? If he is to look to the executor, the question must arise, in every case where a legacy like this is to be paid, whether there are sufficient assets to pay the duty? [Littledale J. In the case of a legacy on personalty, the course would be, not to pay the whole down, but only so much as would leave enough in the executor's hands to make up the duty on what he paid.] In this case, as in Hales v. Freeman (a), the legacy has been paid in full before the duty. Supposing, then, that the legacy is left free from duty; the only consequence is, that the executor must pay the amount of such duty to the legatee out of the residue; but, in the meantime, till the assets are marshalled, that amount is a debt from the legatee to the tenant, by reason of the latter having been called 1833. STOW against DAVENPORT. 1833. STOW against DAVENPORT. upon by the crown to pay it. If it is chargeable upon the land, the sufficiency of the land is a question of equity, which cannot be raised here. Cur. adv. vult. The judgment of the Court was now delivered by DENMAN C. J., who, after stating the facts of the case, proceeded as follows:- The first objection to the plaintiff's right to recover was, that such an annuity, so issuing out of land, was not subject to the legacy duty. The contrary, however, was decided in the case of The Attorney-General v. Jackson (a), after full argument and time taken to consider. The authority of that decision was questioned in the argument before us, but it appears to us to be correct. It follows, from the 36 G. 3. c. 52. s. 6. and the 45 G. 3. c. 28. s. 5., that the plaintiff, who was in possession of the lands, was compellable to pay the legacy duty upon this annuity; and from the case of Hales v. Freeman (b), that he might recover the amount so paid against the annuitant in this form of action, if the annuitant were chargeable with this duty. But a second point was then made, that this annuity was devised clear of all taxes and deductions, and that the annuitant was therefore entitled to receive it without any deduction of the legacy duty. It is a very probable conjecture, that the testator had not the legacy duty in his contemplation at all, and that he may not even have known that the annuity was by law liable to the payment of it. But we must understand the words of the will in their plain and ordinary sense, unless such a construction would be at variance (b) 2 Brod. & B. 391. (a) 1 Cro. & Jerv. 101. 2 Tyr. 50. with the intention of the testator, to be collected from By whom, then, is the duty to be paid? There is no charge upon any other fund than the land. The land is devised to the use that the legatee should take from and out of the premises an annuity to be paid clear of all taxes and deductions. The burthen of paying the annuity clear of all taxes and deductions is thrown upon the land, that is, the land is subject both to the annuity and the tax; and it is the same as if the amount of the tax were directly charged upon the land; consequently the plaintiff took the land subject to that charge; 1833. STOW against DAVENPORT. (a) 1 Swanst. 562. (b) 2 Sim, 492. (c) 4 Russ. 352. Bb 4 and 1833. STOW against DAVENPORT. and when he paid the duty, he released the land from it, leaving it still liable to the net annuity. He cannot, therefore, be considered as having paid a sum of money to which the annuitant was liable; and, therefore, cannot be permitted to recover it from her. It is no hardship on the plaintiff, for if the value of the land had not been adequate to the payment of both the tax and the annuity, he might have renounced the devise. In the case of Hales v. Freeman (a), the question as to the meaning of the word deduction, used in the will by which the annuity was granted, was never raised, and therefore it is no authority in this respect. The judgment must be for the defendant. (a) Brod. & B. 391. Monday, In an action against executors for a debt of the testator, a person entitled to an annuity under the will is not disqualified by interest from giving evidence for the defendants. SOPHIA NOWELL against DAVIES and Another, ASSUMPSIT for wages due from the testator in his lifetime to the plaintiff. Plea, the general issue. At the trial before Denman C. J., at the Middlesex sittings after Michaelmas term 1832, a witness named Sarah Heaven was called on behalf of the defendants, and, being examined upon the voir dire, admitted that her husband was entitled to an annuity of 261. under the testator's will. It was thereupon objected that she was incompetent, having an interest in preventing the diminution of the funds; and upon this objection the Lord Chief Justice refused to admit her evidence. It was not expressly proved that the funds would or would not be sufficient to pay the an nuity if the plaintiff recovered. The jury having found for the plaintiff, a rule nisi for a new trial was obtained in the ensuing term, on the ground that the witness had been improperly rejected. Sir James Scarlett and R. V. Richards, in this term, shewed cause. The witness stood in the same predicament with her husband, who was entitled to 267. a year if the funds were sufficient. If they were sufficient, perhaps the objection of interest is removed; but the onus of proving that lay upon those who called the witness, as in the case of any other primâ facie disqualification. Here the onus probandi could not justly be thrown upon the plaintiff, the state of the funds being a matter peculiarly within the knowledge of the executors. The principle is precisely the same as where a creditor is precluded from giving evidence on behalf of assignees, to increase the fund out of which he expects to be paid. If the funds are already sufficient, it lies upon the assignee to prove that in answer: evidence is never given of the insufficiency. That a creditor is, primâ facie at least, not a competent witness for an executor, to increase the estate, appears from Craig v. Cundell (a), cited to this point in 1 Stark. on Ev. 137. It has, indeed, been said that a creditor may as well give this evidence for the representatives after the testator's death, as for the testator himself (which he clearly may), during his life (b). But, after the testator's death, the limited fund, and the creditor has nothing further to look to. It is different while the testator is alive. And in Clarke v. Gannon (c), it was estate is a specific, (a) 1 Campb. 381. (c) Ry. & M. N. P. C. 31. (b) Paull v. Brown, 6 Esp. 34. held, 1833. NOWELL against DAVIES. |